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1997 Supreme(MP) 131
High Court Of Madhya Pradesh
R. S. GARG
MUKKAN ALIAS BALMUKUND - Appellant
Versus
STATE OF M.P. - Respondents
CRIMINAL APPEAL 878 Of 1994
Decided On : 03/10/1997
Manoj Naidu, Salim Ahmed
Non-compliance with the mandatory provisions of Sections 42, 50, 52, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, vitiates the trial and entitles the accused to acquittal.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42, 50, 52, 57 - NON-COMPLIANCE - EFFECT - ACQUITTAL - MANDATORY PROVISIONS.
Fact of the Case:
The appellant was convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of 6 Kg and 400 gms of contraband opium. The appellant challenged the conviction on the ground of non-compliance with the mandatory provisions of Sections 42, 50, 52, and 57 of the Act.
Finding of the Court:
The court found that there was non-compliance with the mandatory provisions of Sections 42, 50, 52, and 57 of the Act. The court held that the non-compliance with Section 42(2) was total and that the provisions of Section 50 are mandatory. The court also held that the provisions of Sections 52 and 57 are mandatory, as interpreted by the Supreme Court in Mohinder Kumar v. The State.
Issues: Whether there was non-compliance with the mandatory provisions of Sections 42, 50, 52, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Ratio Decidendi: The court held that the provisions of Sections 42, 50, 52, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are mandatory and that non-compliance with these provisions vitiates the trial. The court relied on the Supreme Court judgments in State of Punjab v. Balvir Singh, Ali Mustafa v. State of Kerala, and Mohinder Kumar v. The State.
Final Decision: The appeal was allowed, and the appellant was acquitted of the charge.
( 1 ) THE appellant stands convicted under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has been awarded 10 years' R. I. and sentence of payment of fine of Rs. 1,00,000/- has also been imposed upon him.
( 2 ) THE prosecution case in brief is that on 17-6-92, when certain persons of Crime Investigation Department were on patrolling, they were informed by somebody that the present accused Mukkan alias Balmukund was having a bag containing contraband opium. After receiving the information from an informer, without taking any warrant or without sending any information to the higher officer, the Department people arranged a raid, apprehended the accused and after taking search of his bag found 6 Kg and 400 gms. contraband opium in his bag. Immediately after the search was over, the matter was informed by PW/4 H. S. Billa to the concerned Magistrate, Dy. Superintendent of Police and Station House In-charge of the concerned Police Station. The substance seized from the accused was sent for its chemical examination. After receiving the reports etc. , the prosecution filed a charge-sheet against the accused. The accused denied the commission of the offence and submitted that the bag did not belong to him and he was falsely framed, defence regarding non-compliance, of Ss. 42, 50, 52 and 57 of the N. D. P. S. Act, were also raised. The learned trial Court came to the conclusion that there was no non-compliance of Ss. 42, 50, 52 and 57 of the Act and the prosecution was successful in proving that, the accused was found in possession of contraband article, convicted the accused and awarded the sentence as referred to above.
( 3 ) MS. T. Kholiya, learned counsel for the appellant submitted before the Court that, there is apparent non-compliance of Ss. 42, 50, 52 and 57 of the Act. She submits that in view of the violation of mandatory provisions of the Act, the accused/appellant is not required to show the prejudice occasioned to him but is entitled to his acquittal. On the other hand Shri Naidu, learned Penal Lawyer, states that the prosecution did comply with the mandatory requirements of Section 42 (2), Sections 50, 52 and 57 and, as such, the accused/appellant is not entitled to be acquitted.
( 4 ) IN the mater of State of Punjab v. Balvir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702), the Supreme Court has clearly stated that, S. 42 (2) is mandatory to the extent that an authorised officer who takes down an information in writing or records the grounds under proviso to S. 42 (1), he should forthwith send, a copy thereof to his immediate official superior. According to the Supreme Court if there is total non-compliance of the provision, the same affects the prosecution case, but, if there is delay, then the provisions are not mandatory. In the instant case to my mind, no compliance of S. 42 is to be seen. Section 42 (2) states that when an officer takes down any information in writing under Sub-Sec. (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. An authorised officer is bound to record the information received or the personal knowledge which he may derive from any other source. It is only after taking down the same in writing, he may proceed to make search etc. In the instant case it is not in dispute that the officer received the information. It is not to be seen from the records that the said information was ever reduced in writing. Ex. P/1 is the seizure memo, which is prepared on 17-6-92 at 13. 15 p. m. Ex. P/2 is the arrest memo, which is prepared on 17-6-92 at 14. 00 p. m. i. e. after about 45 minutes of the seizure. Ex. P/3 is the information sent to the Judicial Magistrate First Class regarding search and seizure. Ex. P/4 is the information sent to the Superintendent of Police regarding search and seizure. Ex. P/5 is the report sent by PW/4 Shri Billa to the Station House In-charge of Police Statio
